Peter H. Russell Now Agrees With Me: What Happens When a Governor General Rejects a Prime Minister’s Constitutional Advice


Phil Lagassé took this action shot on 28 October 2013, where Peter Russell and I talk at the Regina International Airport

For the last eight years or so, I have stated in numerous blog posts, presentations at conferences, my thesis, and several journal articles the basic precepts of the established constitutional position of the governors and prime ministers under Responsible Government. Namely, governors can only reject a premier’s constitutional advice under exceptional circumstances precisely because of the exceptional consequences that this exercise of discretion causes: that the prime minister whose advice the governor rejected must resign or be dismissed from office, and that the governor must then appoint a new ministry which can take responsibility for the dismissal of its predecessor and command the confidence of the elected assembly.

Contrary to what the reactions of most academics and journalists in the late 2000s and early 2010s would suggest, this viewpoint remained the bog standard and universally accepted formulation of Responsible Government until well into the 20th century. In fact, I derived – or perhaps, simply re-stated – this argument from a long line of Canadian constitutional scholars active from the 1840s to the 1990s, from Alpheus Todd and R. Macgregor Dawson to Eugene Forsey, and Graham Eglington[1], and various real historical precedents from the 19th and 20th centuries where precisely this series of events happened. These include the Double Shuffle in the Province of Canada in 1858, where George Brown resigned after Governor Head rejected his advice to dissolve the legislature,[2]the instance where Prime Minister Sir Charles Tupper resigned in 1896 after Governor General Lord Aberdeen refused to implement his constitutional advice to appoint judges and summon senators,[3]and the famous King-Byng Affair of 1926, where William Lyon Mackenzie King resigned as Prime Minister because Governor General Lord Byng rejected his constitutional advice to dissolve parliament.[4]

To make matters even easier, the official written correspondence between the Governor and Prime Minister makes clear in all three cases that the Prime Minister resigned because the Governor rejected his constitutional advice.  

For example, George Brown wrote Governor Head on  4 August 1858:

“Mr Brown has the honour to inform his excellency the governor general that, in consequence of his excellency’s memorandum of this afternoon, declining the advice of the council to prorogue parliament with a view to dissolution, he has now on behalf of himself and colleagues to tender his resignation.”[5]

You’ll have to excuse Brown’s resort to the third person; while the customs governing official correspondence in the mid-19th century now strike us as archaic, the constitutional relationship between the Governor and Prime Minister has remained the same ever since. I should also add that in those days, we always prorogued a session of parliament immediately before dissolving the parliament  itself, so we cannot construe Brown’s letter to imply that Head rejected Brown’s advice to prorogue parliament; in fact, Governor Head told Brown on 31 July (while also referring to himself in the third person): “The governor-general has no objection to prorogue the parliament without the members of the new administration taking their seats in the present session.”[6] It’s a pity that Brown did not follow these clear instructions, or else he might have succeeded in cutting Sir John A. Macdonald’s political career short!

In July 1896, Lord Aberdeen refused to summon new senators and appoint new judges on the grounds that the Liberals had won a parliamentary majority in the election a few weeks before and that Tupper’s non-urgent spoils system appointments would violate the emerging caretaker convention. Tupper resigned specifically because Aberdeen had rejected his constitutional advice:

Adhering respectfully but firmly to the opinions I have ventured to express in this memorandum, which I regret to find do not agree with those of Your Excellency, it remains only for me to tender the resignation of my colleagues and myself, and to ask that we may be relieved from our responsibilities as Ministers of the Crown at the earliest convenience of Your Excellency.[7]

I will quote King’s correspondence with Byng a little further below because it directly relates one Russell’s article from 2011.

More recent events in 2017 provided a contemporary affirmation of this centuries-old feature of Responsible Government. In British Columbia, the incumbent government lost the vote of confidence on the Address-in-Reply to the Speech from the Throne in June 2017. Premier Christie Clark immediately marched over to Government House and advised Lieutenant Governor Judith Guichon to dissolve the legislature; Guichon refused, and thereby forced Clark to resign as premier, and later that evening announced that she had taken on John Horgan as Premier-designate. I covered all these details at the time here, including Clark’s obvious self-serving and obfuscatory dissemblings to the media after the Lieutenant Governor swiftly dismissed her from office.

Yet despite the overwhelming historical evidence and series of precedents which have supported precisely the arguments that I made for over one hundred fifty years, and despite even the ultra-modern precedent from British Columbia only four years ago, I have also faced a great deal of ridicule and opposition from certain peers in my field who should know better. The irony is that my arguments merely affirmed what Todd, Bourinot, Dawson, and Forsey had said for centuries; while I appeared heterodox between 2011 and 2021, I was, in fact, taking the orthodox viewpoint which many Canadian scholars, including Peter Russell, Errol Mendes, Johannes Wheeldon, and Mark Jarvis, had rejected during the Harper Era. By pure coincidence, Mendes (I’ll get to that one in a separate post) and Russell in particular have returned to the historical norm, which I always defended, now that Harper is no longer prime minister.

In 2011, Russell submitted an essay to the Canadian Parliamentary Review entitled “Discretion and the Reserve Powers of the Crown,” which also served as a direct rebuttal to the piece which Nick MacDonald and I had gotten published in the previous issue of the same journal, “No Discretion: On Prorogation and the Governor General.” (He names me and Nick no fewer than nine times in the text of the article). Russell outlined controversial prorogations and dissolutions in Canada and devoted a large portion of the article to the King-Byng Affair of 1926, despite the fact that Nick and I had argued and clearly stated that the governors possess the discretion to reject a prime minister’s advice to dissolve parliament and that we even compared and contrasted that scenario to one involving prorogation. But his digression contains some helpful asides which show how he has altered his views over the last ten years to bring himself in line with Todd, Bourinot, Dawson, Forsey, and me. In 2011, Russell accuses King of wrongdoing for having resigned after Byng rejected his constitutional advice to dissolve parliament in June 1926, under the guise of not giving King an answer right away: 

His refusal to grant a dissolution on the spot to Mr. King provoked the Prime Minister’s resignation – on the spot. This left the Governor General without a Ministry – “an action which appears to be without precedent in the history of the Empire.”14 Byng now had no choice but to send for Mr. Meighen and ask him “if he could command a majority in the House to get the work of the session conducted in an orderly manner. Mr. Meighen replied that he could, having received informal promises from a number of the Progressives to the effect that they would vote with the Conservatives to get these all-important Bills through, pass Supply, and prorogue.”15 The Governor General then asked Mr. Meighen to form a government.[8]

King tendered his resignation to Byng by a letter on 28 June 1926 which opens:

“Your Excellency having declined to accept my advice to place your signature to the Order-in-Council with reference to a dissolution of parliament, which I have placed before you today, I hereby tender to Your Excellency my resignation as Prime Minister.”[9]

Furthermore, Byng’s written reply the next day indicates that he had decided to reject King’s advice, or else His Excellency would not have said in the past tense, “Permit me to say once more, before deciding on my constitutional course in this matter, I gave the subject the most fairminded and painstaking consideration which it was in my power to apply.”[10]Forsey, and therefore Russell (whose work derives almost wholly from Forsey’s treatise on The Royal Power of Dissolution) falsely portray Byng’s indecision as something other than a rejection of King’s advice, when, in fact, what Byng told King in October 1925 means that Byng would always have rejected King’s advice to dissolve parliament in June 1926.[11]

Most curiously of all, Russell unwittingly contradicted himself in his account of King’s resignation. On the same page from which I quoted that passage, he also acknowledges the arrangement which Byng and King had struck in October 1925: King could stay on as prime minister to test the confidence of the new House of Commons and the support of the Progressives, despite having lost his own seat and despite the fact that the Conservatives won the plurality of seats, but King could not expect an early dissolution. By acknowledging that fact, Russell inadvertently undermined his whole argument here that King acted incorrectly by resigning immediately in June 1926; King had knowingly breached his agreement with Byng (he was a politician, after all), and Byng had no choice but to dismiss King and appoint Meighen. In any case, Byng had wanted to appoint Meighen prime minister as early as October 1925.    

In an interview in 2012, Russell likewise defended the discretion of governors to reject ministerial advice while omitting the all-important corollary that doing so forces the prime minister to resign.

The power to summon, prorogue, and dissolve Parliament […] are powers of the Crown, which are exercised in Canada by the Governor General. […] There’s no question that the power is hers and hers to use as she sees fit. [The Governor General] has to think what is in the best interest of parliamentary democracy and the well-being of Canadians. […] The Crown has the reserve power […]. It’s a tough call, which lots of arguments on either side of the issue. […] The Crown is our safeguard over our Prime Ministers who might want to ride roughshod over Parliament, ignore its will, not be willing to submit themselves to its judgement. That was the big worry: was this a Prime Minister not willing to submit his government to the judgement of Parliament? [The Governor General] has an important job to project the integrity of parliamentary democracy.  

He also omitted when happens after a governor general rejects a prime minister’s constitutional advice from his piece “Prime Ministers Must Not Become Kings” in 2011.[12]

Yet in 2021, he sees my argument as so obvious that he only devotes one sentence to it.

Peter H. Russell submitted a letter to the editor in reaction to Andrew Coyne, who believes that Governor General Mary Simon should reject Prime Minister Trudeau’s constitutional advice to dissolve the 43rd Parliament. Coyne, like the Russell to whom I spoke about this concept on a few occasions between 2011 and 2013, conveniently omits the corollary of what happens after a governor general rejects such constitutional advice: the prime minister must resign, and the governor must appoint a new prime minister who can command the confidence of the House of Commons.

Russell says:

(Aug. 4): If the Governor-General were to reject the Prime Minister’s advice to dissolve Parliament and call an election, she must have an alternative government that has a reasonable chance of commanding the confidence of the House until October, 2023. That strikes me as most unlikely.

Peter Russell Professor emeritus of political science; Honey Harbour, Ont.[13]

“She must have an alternative government” can only mean that the prime minister must resign when the governor general rejects his constitutional advice and that the governor general must then appoint a new prime minister who will take responsibility for the dismissal of his or her predecessor. Peter has now quietly but unmistakably changed his mind, refuted his own previous statements from 2009 to 2021, and has now finally adopted in full precisely the argument that I have promoted for the better part of a decade – the very same argument, I should add, which he dismissed at the Canadian Political Science Association’s conference in Victoria, where he and I were co-panellists on 5 June 2013.

I am pleased that he has finally come around. On the one hand, I would conclude that he could have saved us all a lot of trouble if he had gotten it right from the beginning in 2008, but on the other hand, if he had gotten everything right from the start 13 years ago, then I might not have become what I am now. My detractors must understand that I only exist because they deserted and abandoned a fertile scholarly niche in the late 2000s and early 2010s (and in many cases, out of a blatant partisan motivation) and gave me the opportunity to occupy it; ironically, Russell’s article rebutting mine and Nick’s in 2011 also significantly elevated me within the academic firmament, too. And so I shall continue.

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[1]      Sir John George Bourinot, Parliamentary Procedure and Practice. 1st ed. (Montreal: Dawson Brothers Publishing, 1884): 58; Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102; Alpheus Todd, Parliamentary Government in the British Colonies2nd Edition (London: Longmans, Green, and Co., 1894), 760-761; Robert Macgregor Dawson, “The Constitutional Question,” Dalhousie Review VI, no. 3 (October 1926): 332-337; Eugene Forsey and Graham C. Eglington, The Question of Confidence in Responsible Government (Ottawa: Parliament of Canada, 1985), 16-17.

[2]      Alpheus Todd, Parliamentary Government in the British Colonies2nd Edition (London: Longmans, Green, and Co., 1894), 769.

[3]      Canada, Parliament of Canada, “Memorandum from Sir Charles Tupper to His Excellency the Governor General, under date 6th July 1896,”  Sessional Papers, no.7 (Ottawa: Queen’s Printer, 1896), 7.

[4]    E. George Smith, “King Resigns When His Excellency Refuses Dissolution,” The Globe, 29 June 1926.

[5]      Alpheus Todd, Parliamentary Government in the British Colonies2nd Edition (London: Longmans, Green, and Co., 1894), 769.

[6]      Alpheus Todd, Parliamentary Government in the British Colonies2nd Edition (London: Longmans, Green, and Co., 1894), 764.

[7]      Canada, Parliament of Canada, “Memorandum from Sir Charles Tupper to His Excellency the Governor General, under date 6th July 1896,”  Sessional Papers, no.7 (Ottawa: Queen’s Printer, 1896), 7.

[8]     Peter H. Russell, “Discretion and the Reserve Powers of the Crown,” Canadian Parliamentary Review 34, no. 2 (July 2011): 23-24.

[9]     William Lyon Mackenzie King, letter to Governor General Lord Byng, 28 June 1926. Pages 109524-109525 in Library and Archives fonds.

[10]   Governor General Lord Byng, letter to William Lyon Mackenzie King, 29 June 1926. Page 109527 in Library and Archives fonds.

[11]   F.C. Mears, “Promise Is Given to Refrain from Making Appointments,” The Globe, 4 November 1925; F.C. Mears, “‘Usurping of Power,’ Meighen Charges,” The Globe, 5 November 1925.

[12]   Peter H. Russell, “Prorogation: Prime Ministers Must Not Become Kings,” Canada Watch (Spring 2011): 16-18.

[13]   Peter H. Russell, “Letter to the Editor Re: Re There’s A Law Against Snap Elections – And The Governor-General Is Meant To Enforce It (Aug. 4)”, Globe and Mail, 5 August 2021.

About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively in my field. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
This entry was posted in Crown (Powers and Office), Dissolution, Governor's Discretion, Prorogation. Bookmark the permalink.

3 Responses to Peter H. Russell Now Agrees With Me: What Happens When a Governor General Rejects a Prime Minister’s Constitutional Advice

  1. Donald F Bur says:

    Excellent article.

    It strikes me that as society moves along, governments are starting to believe they rather than Parliament make law and that the Crown is merely a rubber stamp to be used, or ignored, as the government wishes. That is why it is important that we be reminded of these fundamental principles upon which society is based.

    Like

  2. Rand Dyck says:

    You tell ’em James! I remember sitting in Forsey’s class as his TA in 1967 and hearing this exact argument! And then it took you and Nick to have the courage to enunciate it anew!!! You ARE a star in the academic firmament!

    Like

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